House Passes Federal Whistleblower Protections with WPEA (S. 743)

September 28, 2012

GAP Applauds Passage, Senate Expected to Follow Suit

(Washington, DC) – The Government Accountability Project (GAP) hailed today's passage of S. 743, the Whistleblower Protection Enhancement Act (WPEA), by the House of Representatives by unanimous consent. The legislation would provide millions of federal workers with the rights they need to safely report government corruption and wrongdoing. The bill reflects a strong bipartisan consensus, and now goes to the Senate for approval upon their return in November. The text of the bill can be read here[1].

GAP Legal Director Tom Devine commented:

The good news is that the whistleblower rights in this bill are the strongest in history for federal workers. Congress is on the berge of restoring credible free speech rights for government employees who want to expose corruption and defend taxpayers. The bad news is that our work is not done. Demands by a few key Republicans removed provisions for jury trials that Congress has provided for nearly all corporate whistleblowers, and national security reforms to prevent classified leaks through protection for those who act responsibly within government’s institutional checks and balances. The bottom line is that the House consensus sweeping reform is a major, bipartisan victory for good government.

Devine singled out retiring Senator Daniel Akaka (D-Hawaii) as the pioneer in the thirteen year legislative campaign to pass the WPEA, stating "Senator Akaka is running and winning a marathon victory for whistleblowers."

Other key champions have included House Republicans Darrell Issa (Ca.) and retiring member Todd Platts (Pa.) – who has sponsored the House bill for over a decade – as well as House Democrats Chris Van Hollen (Md.) and Elijah Cummings (Md.). Senators Charles Grassley (R-Iowa), Susan Collins (R-Maine) and Joseph Lieberman (I-Ct.) have been Senator Akaka’s partners.

In the waning days of the last Congress, in December 2010, the WPEA – after passing both the Senate and House by Unanimous Consent in some form – was killed by an anonymous Senator's "secret hold" in the last hours of the session[2]. This time, however, the bill is expected to pass before adjournment.

Over the past 12 years, GAP has spearheaded efforts to pass the WPEA, heading a coalition of hundreds of groups demanding these protections. Intensive dialogue between the Make It Safe Coalition (MISC), which GAP coordinates, the Obama administration, and both chambers of Congress has paved the way for this development.

Devine noted that the Obama administration promised to take executive action on national security whistleblower rights, if Congress didn’t: "Because this bill excludes intelligence community workers, now is the time for the President to honor his promise and provide an effective, responsible channel for reporting waste, fraud and abuse."

What the Bill Does

The most significant benefits in the WPEA are listed below:

1.) Expanded Protection for Disclosures of Government Wrongdoing

Closes judicially-created loopholes that had removed protection for the most common whistleblowing scenarios and left only token rights (e.g. only providing rights when whistleblowers are the first to report misconduct, and only if it is unconnected to their job duties). (Sec. 101, 102)

Clarifies that whistleblowers are protected for challenging the consequences of government policy decisions. (Sec. 101, 102)

Cancels the 1999 precedent that translates “reasonable belief” to require irrefragable proof (“undeniable, uncontestable, or incontrovertible proof”) before they are eligible for protection. (Sec. 103)

Protects government scientists who challenge censorship. (Sec. 110)

Codifies and provides a remedy for the “Anti-Gag” Statute – a rider in the Appropriations bill for the past 24 years – that requires a statement notifying employees that agency restrictions on disclosures are superseded by statutory rights to communicate with Congress, whistleblower rights, and other statutory rights and obligations. (Sec. 104(a), (b) and 115)

Suspends the Federal Circuit Court of Appeals' sole jurisdiction on appellate review of the WPA in light of its consistent track record of narrowing the law's protections. (The Court has a 3-226 record from October 1994 – May 2012 against whistleblowers for decisions on the merits), restoring all-Circuit review for a two-year experiment as mandated in the original 1978 Civil Service Reform Act and the Administrative Procedures Act. (Sec. 108)

Overturns an unusual Merit Systems Protection Board (MSPB) practice that allows agencies in some cases to present their defense first and allows the MSPB to rule on the case prior to the whistleblowers’ presenting their evidence of retaliation. (Sec. 114)

Requires that the President’s exercise of his discretionary power to impose national security exemptions that deprive employees of Title 5 whistleblower rights must be done prior to the challenged personnel action. (Sec. 105)

Provides the Office of Special Counsel (OSC) with authority to file friend-of-the-court briefs to support employees appealing MSPB rulings. (Sec. 113)

Makes it easier for OSC to discipline those responsible for illegal retaliation by modifying the burdens of proof (Sec. 106(b)), and by ending OSC liability for attorney fees of government managers, if the OSC does not prevail in a disciplinary action (Sec. 107(a)).

Requires the designation of Whistleblower Protection Ombudsmen in Inspectors General Offices to educate agency personnel about whistleblower rights. (Sec. 117)

Requires the MSPB to report on the outcomes of whistleblower cases, from the administrative judge through the Board appeal, in its annual reports. (Sec. 116(b))

Requires the Government Accountability Office (GAO) to study the impact and feasibility of changes in the number and outcome of cases before the MSPB, the Federal Circuit, or any other court; and to provide recommendations to Congress regarding whether the MSPB should be granted summary judgment authority and whether district courts should have jurisdiction over some WPA cases. (Sec. 116)